The Court of Appeal's decision in Samsung v ZTE clarifies a live question in SEP/FRAND litigation: when parties are locked in a global forum battle, does pressing for your preferred court amount to bad faith? The answer, at least on these facts, is no.

The backdrop in a nutshell

Samsung and ZTE are negotiating a renewed global cross-licence over cellular SEPs (now including 5G). Samsung sued first in England for a global FRAND determination and related relief. Within days, ZTE launched proceedings in the Chongqing Court in China for a global FRAND cross-licence. ZTE also filed infringement cases in several jurisdictions (Germany, UPC, Brazil, Hangzhou), while Samsung responded in kind in some fora and brought competition claims elsewhere. Both sides floated interim cross-licence terms on substantially the same commercial footing, with a single sticking point: which court's final FRAND determination should govern any true-up—London (Samsung) or Chongqing (ZTE). 

At first instance, Mellor J held ZTE had acted in bad faith by using a wave of injunction actions to force a Chongqing FRAND determination and granted declarations, including that a willing licensor would enter into an interim licence tied to the English court's ultimate FRAND outcome. ZTE appealed. 

What the Court of Appeal decided

The Court allowed the appeal, delivering three core messages. 

First, pressing for your preferred FRAND forum is not, without more, bad faith. The Court distinguished earlier interim-licence cases where SEP owners were using foreign injunctive pressure to extract supra‑FRAND rates. Here, both sides accepted there should be an interim licence and the fight was purely jurisdictional. Absent a legitimate, substantiated objection to the other forum (and none was made out against Chongqing), seeking to channel the final determination there is not bad faith—even if the conduct is unattractive and increases costs.

Second, "first seised" is not a trump card. While being first to issue may be a tie-breaker in some contexts, it does not, by itself, make the other party's forum strategy improper. The Court stressed that, given the lack of an international FRAND forum rule, parallel proceedings are a structural feature of the current ecosystem, not an automatic badge of bad faith.

Third, keep interim licences jurisdiction‑neutral. Birss LJ in particular highlighted that the interim‑licence concept (rooted in the CJEU's decision of Huawei v ZTE) is about securing ongoing implementation and payment while final terms are resolved. In most cases, that can be done by fixing a sensible interim financial mechanism that any competent court or tribunal can credit later—without embedding a forum preference or attempting to force a party into a specific jurisdiction. 

On comity, the Court did not need to decide the point but flagged real concerns with declarations designed to "force" forum choices. It set aside the bad-faith and forum‑specific declarations. A narrow, neutral interim‑licence declaration reflecting agreed terms might be permissible, but the parties were invited to address that separately.

Why this matters

This judgment recalibrates interim‑licence practice and forum strategy in FRAND disputes:

• Bad faith is about substance, not forum preference. Using injunctions to coerce supra‑FRAND outcomes remains offside. Using litigation pressure to prefer a competent foreign FRAND forum—absent concrete objections to that forum—does not.
• First-to-file helps, but won't carry the day.
• Neutral interim licences are a possible model. Courts will be wary of interim constructs that smuggle in jurisdictional wins. A clean, jurisdiction‑agnostic interim payment/security framework, later credited against whatever final licence emerges (wherever it's determined), is more likely to stick.
• Comity counts. Relief intended to lever parties out of a parallel, properly seised foreign FRAND process risks overreach. 

Practical takeaways

For SEP owners and implementers alike, the safe path for interim relief is pragmatic and neutral: set a fair, time‑limited interim payment (or security), avoid forum‑locking clauses, and let competent fora proceed. If you want to challenge the other side's chosen court, bring a substantiated, forum‑specific objection—not a generic preference. And if you are first seised, treat it as a factor, not a free pass. 

Bottom line: in the current multi‑forum FRAND world, the Court of Appeal has signalled that interim licences should reduce friction, not weaponise it, and that forum jockeying—without proof of real unfairness—is not, in itself, bad faith.